Floor Statements

Mr. Speaker, CIA Director Porter Goss is the latest Bush administration official to encounter the media bias Americans know well: the use of anonymous sources to level partisan charges.

It was on display in a front page Washington Post story this week.

It quoted four former CIA officials, none of whom was mentioned by name.

The frequent use of anonymous sources is part of the media's institutional problem.

When anonymous sources are used it is too easy for disgruntled former employees or others to settle scores.

It is also contrary to journalistic standards and ethics.

In fact, the Washington Post editorial page has called for an overhaul of the CIA in light of the September 11, 2001 attacks.

Director Goss is doing exactly what is needed to reform and restructure the CIA.

For writing a story that quoted anonymous sources and placing it on the front page, this week's Media Bias Award goes to the Washington Post.

Mr. Speaker, I support S. 150, the Internet Tax and Nondiscrimination Act.

This legislation would reinstate the moratorium on Internet access taxation and multiple or discriminatory taxes on electronic commerce for three years.

Internet commerce is still relatively new and has yet to reach its full potential. The imposition of taxes would threaten the future growth of e-commerce and would discourage companies from using the Internet to conduct business. Internet taxation would create regional and international barriers to global trade.

The Internet is also a major source of information and resources for many individuals and families. Taxes could make Internet access unaffordable for some Americans. Our goal should be to encourage and promote Internet access.

Americans should be able to access the Internet without being subject to state and local taxes.

Mr. Speaker, most Americans now realize that Big Media, network TV news programs and the largest newspapers and news magazines, tried to determine the outcome of the Presidential election.

A study by the Project for Excellence in Journalism confirms what Americans already suspected: George Bush received more than twice as much negative coverage as John Kerry. Think what President Bush's margin of victory would have been without the media bias.

But the danger is the media bias will continue. That is a real threat to democracy.

When the American people do not have the facts, the unvarnished truth, they cannot make the best decisions and we do not have good government.

Big Media needs to reassure the American people that they will strive for objectivity and seek to restore their reputation as the protector of democracy, rather than remaining a threat to it.

Mr. Speaker, I thank the chairman of the Committee on the Judiciary, the gentleman from Wisconsin (Mr. Sensenbrenner), for yielding me this time.

Mr. Speaker, H.R. 1417 passed the House unanimously in March. The bill before us today reflects noncontroversial amendments added by the Senate.

As the gentleman from Wisconsin (Chairman Sensenbrenner) indicated, the Senate included some inadvertent, but serious, drafting errors when it passed the bill with these amendments in October. It is now necessary to adopt a concurrent resolution that reflects the fixes to those errors.

The Senate passed this resolution yesterday.

H.R. 1417 is a bipartisan effort to reform the process of copyright royalty rate-making and distribution in a way that is fair to all participants. It is important to the artists, songwriters, music publishers, and webcasters caught in a long, laborious, and costly royalty system. It will provide an incentive for the creation and distribution of content.

The copyright royalty rate-making and distribution process is one of the most complicated and arcane areas of our legal system, but it affects an expansive universe of people and industries.

This bill addresses two complaints about the current system: cost and lack of stability and accountability.

Work on reforms to this system has been a long and tough process over the past 3 years. I would like to thank the gentleman from Wisconsin (Chairman Sensenbrenner) and the gentleman from Michigan (Ranking Member Conyers) and the gentleman from California (Ranking Member Berman) for their commitment to the process.

This legislation is necessary to ensure an efficient and effective system for copyright royalties.

Mr. Speaker, I urge my colleagues to support this bill.

Madam Speaker, the day after the election President Bush said, ``So today I want to speak to every person who voted for my opponent. To make this Nation stronger and better, I will need your support, and I will work to earn it.''

Regrettably, even after the election, the attacks on President Bush have continued. Leading the pack were opinion makers of the New York Times. A November 5 Times column headlined ``No Surrender'' described President Bush as ``a radical, the leader of a coalition which deeply dislikes America.''

Perhaps the most notable example of why national unity will be difficult to achieve were the words of Senator Kerry's running mate, Senator John Edwards. In his concession speech, Senator Edwards used the phrase ``the battle rages'' four times. He described the battle as one where ``the fight has just begun.''

President Bush has reached out to his opponents. Unfortunately, they have turned their backs on him.

Mr. Speaker, September 14 2004, the House debated and passed H.R. 4571, the Lawsuit Abuse Reduction Act, a bill I authored to help prevent frivolous lawsuits and the notorious practice of forum shopping from ruining America's small businesses.

In the midst of floor debate on H.R. 4571, the Congressional Research Service issued a self-described ``rush memorandum'' dated September 14, 2004, to the minority staff of the House Judiciary Committee, which stated ``H.R. 4571 does provide an option for filing [a lawsuit] where a business has a principal place of business . . . However, if a defendant's principal place of business was not in the United States, then this option could not be exercised in a United States court. Consequently, it would appear that in certain circumstances, a United States citizen or resident injured in this country would not have a judicial forum in the United States in which to seek relief.''

This statement left the misleading impression that H.R. 4571, were it to become law, would somehow make it more difficult to bring some personal injury lawsuits in the United States. Not surprisingly, the misleading impression left by the CRS memorandum was exploited by those on the opposite side of the aisle in the midst of debate on H.R. 4571, and later by the press. For example, a report in CongressDaily/A.M. describing debate on H.R. 4571 stated ``Many Democrats . . . cited a Congressional Research Service memorandum advising lawmakers that the bill could prevent U.S. citizens from having their cases heard in a U.S. court if the defendant's main place of business is located in a foreign country. Rep. Jay Inslee, D-Wash., sarcastically called the legislation `the Foreign Corporation Protection Act.'''

Those statements are deeply misleading, and here's why. In fact, nothing in H.R. 4571 would prevent cases from being brought against foreign defendants that are not already precluded under current law. I wrote to CRS requesting a clarification of current law, and I received the following response: ``[U]nder the Due Process Clause, a foreign corporation that had its principal place of business overseas, engaged in little or no economic activity in the United States, and did not otherwise subject itself to the jurisdiction of the United States, could not be subject to the jurisdiction of the various state courts. If such a corporation engaged in a tortious activity such as manufacturing a defective product, then a plaintiff would be unable to bring an action in a state court forum for such tortious activity, even if the product caused an injury in the United States. In such a case, an injured party would be required to seek compensation in the courts of another country.''

This makes clear that while some Members on the other side of the aisle claimed that H.R. 4571, if enacted, would preclude certain lawsuits from being brought that could be brought under current law, the Due Process Clause of the Constitution has precluded under current law, and would continue to preclude under H.R. 4571, some plaintiffs from bringing an action in a state court forum against a foreign defendant for tortious activity in certain circumstances, even if the product caused an injury in the United States. The bottom line is that H.R. 4571 would do nothing to change current law in that regard. Indeed, no legislation could change current law in that regard since the constitutional requirements of the Due Process Clause cannot be changed by legislation.

In fact, the venue statute of the gentleman from Washington Mr. Inslee's own state provides that ``An action . . . for the recovery of damages for injuries to the person or for injury to personal property may be brought, at the plaintiffs option, either in the district in which the cause of action, or some part thereof, arose, or in the district in which the defendant, or, if there be more than one defendant, where some one of the defendants, resides at the time the complaint is filed.'' That venue standard is for all practical purposes the same as that provided in H.R. 4571. H.R. 4571 provides that a personal injury lawsuit could be brought in any state where the person bringing the claim resides at the time of filing or resided at the time of the alleged injury, any state where the alleged injury or circumstances giving rise to the personal injury claim allegedly occurred, or where the defendant's principal place of business is located. Insofar as opponents of H.R. 4571 have a complaint regarding the inability to bring certain lawsuits against foreign corporations in the United States, their complaint is with the Constitution's Due Process Clause, and not with H.R. 4571, which simply reflects the same standard that prevails among the state's venue laws, subject of course to the Due Process Clause of the Constitution. If a foreign corporation's contacts with the United States are so minimal as to make it unconstitutional under the Constitution's Due Process Clause to subject them to suit in the United States regardless of whether the venue criteria of H.R. 4571--or of any State venue statute--are met, there is nothing a legislature can do by statute to remedy that situation.

To help set the record straight, I am submitting for the record both my letter to CRS requesting a clarification, and the CRS memorandum I received in response.

House of Representatives,

Washington, DC, September 16, 2004.

Kenneth R. Thomas,

Legislative Attorney, American Law Division, Congressional

Research Service, Washington, DC.

Dear Mr. Thomas, It is my understanding that, under each

State's venue statutes, there might occur circumstances in

which a foreign corporation with its principal place of

business outside the United States causes personal injury to

a person within the State, yet a tort lawsuit brought by such

injured person against such foreign corporation would be

precluded in the United States.

I am writing to request that the Congressional Research

Service provide me with the following information:

Under each State's venue laws, are there any circumstances

in which a foreign corporation with its principal place of

business outside the United States would not be subject to

suit in such State (or elsewhere in the United States) by a

person within the State who alleges such foreign corporation

caused such person personal injury within the State?

I would greatly appreciate this information by September

27, 2004.

Sincerely,

Lamar Smith,

Member of Congress.

Mr. Chairman, thousands of illegal aliens pour over our southern border each day. A significant number of these aliens are not Mexican, and cannot simply be sent back over the border.

Border Patrol agents must process aliens from countries other than Mexico and are forced to release them into our communities pending a hearing. This is because there is not enough bed space in our detention facilities.

When illegal aliens are released pending a hearing, it is estimated that 85 percent will never be heard from again.

This process has become known as the ``catch and release'' program, and it threatens our national security.

The Department of Homeland Security recently reported that from October through June over 44,000 non-Mexican aliens were apprehended on the southern border from countries such as Afghanistan, Algeria, Egypt, Iran, Pakistan, Saudi Arabia, and Syria.

The hard work of our Border Patrol agents is wasted when we do not have enough detention space.

The Bonilla amendment would help correct this problem by authorizing an increase of 2,500 detention bed spaces for each of the next two years.

The lack of detention space has reached a crisis.

Every day we are releasing aliens from dozens of countries into our communities. We don't know if these individuals are criminals or terrorists.

The Bonilla amendment curtails the catch and release program on our southern border. It lets the U.S. detain illegal immigrants who enter our country rather than release them in our communities.

Mr. Speaker, I'd like to submit for the Congressional Record two letters that were forwarded to me by Bill and Bonnie Nofsinger. Their nephew, 1st Lt. Robert I. Nofsinger, is stationed in Iraq with the United States Marine Corps.

Lieutenant Nofsinger's letters contradict much of what has been reported in the national news media about the war on terror in Iraq. Reports have led some Americans to conclude that all of Iraq is in turmoil and despair, which is not supported by the facts. Much of the country is making the successful transition to stability.

Lt. Nofsinger writes:

``When you watch the news and see doomsday predictions and spiteful opinions about our efforts over here, you can refute them by knowing that we are doing a tremendous amount of good. So spread the word.''

Mr. Speaker, I will follow Lt. Nofsinger's advice and spread the word by submitting his eloquent and heartfelt letters for my colleagues and others to read.

Hello Everyone: I am taking time to ask you all for your

help. First off, I'd like to say that this is not a political

message. I'm not concerned about domestic politics right now.

We have much bigger things to deal with, and we need your

help.

It seems that despite the tremendous and heroic efforts of

the men and women serving here in Iraq to bring much needed

peace and stability to this region, we are losing the war of

perception with the media and American people.

Our enemy has learned that the key to defeating the mighty

American military is by swaying public opinion at home and

abroad. We are a people that cherish the democratic system of

government and therefore hold the will of the people in the

highest regard. We love to criticize ourselves almost to an

endless degree, because we care what others think. Our

enemies see this as a weakness and are trying to exploit it.

When we ask ourselves questions like, ``Why do they hate

us?'' or ``What did we do wrong?'' we are playing into our

enemies' hands. Our natural tendency to question ourselves is

being used against us to undermine our effort to do good in

the world. How far would we have gotten if after the surprise

attacks on December 7, 1941 at Pearl Harbor, we would have

asked, ``Why do the Japanese hate us so much?'' or ``How can

we change ourselves so that they won't do that again?''

Here in Iraq the enemy is trying very hard to portray our

efforts as failing and fruitless. They kill innocents and

desecrate their bodies in hopes that the people back home

will lose the will to fight for liberty. They are betting on

our perceived weakness as a thoughtful, considerate people.

Unfortunately our media only serves to further their cause.

In an industry that feeds on ratings and bad news, a failure

in Iraq would be a goldmine. When our so-called ``trusted''

American media takes a quote from an Iraqi doctor as the

gospel truth over that of the men and women that are daily

fighting to protect the right to freedom of the press, you

know something is wrong. That doctor claimed that of the 600

Iraqis who were casualties of the fighting in Fallujah, the

vast majority of them were women, children and the elderly.

This is totally absurd. In the history of man, no one has

spent more time and effort, often to the detriment of our own

mission, to be more discriminate in our targeting of the

enemy than the American military. The Marines and Soldiers

serving in Iraq have gone through extensive training in order

to avoid shedding innocent blood.

Yet, despite all of this, our media consistently sides with

those who openly lie and directly challenge the honor of our

brave heroes fighting for liberty and peace. What we have to

remember is that peace is not defined as an absence of war.

It is the presence of liberty, stability, and prosperity. In

the face of the horrendous tyranny of the former Iraqi

regime, the only way true peace was able to come to this

region was through force. That is what the American

Revolution was all about. Have we forgotten?

Freedom is not free and ``peace'' without principle is not

peace. The peace that so-called ``peace advocates'' support

can only be brought to Iraq through the military. And we are

doing it, if only the world will let us!

If the American people believe we are failing, even if we

are not, then we will ultimately fail. That is why I am

asking for your support. Become a voice of truth in

your community. Wherever you are, fight the enemy's lies.

Don't buy into pessimism and apathy and say that it is

hopeless, that they hate us too much, that this part of

the world is just too messed up and it is our fault

anyway, that we are to blame.

Whether you're in Middle School, working a 9-5 job, retired

or a stay-at-home mom, you can make a huge difference! There

is nothing more powerful than the truth. So, when you watch

the news and see doomsday predictions and spiteful opinions

about our efforts over here, you can refute them by knowing

that we are doing a tremendous amount of good. Spread the

word. No one is poised to make such an amazing contribution

to the everyday lives of Iraqis and the rest of the Arab

world than the American Armed Forces. By making this a place

where liberty can finally grow, we are making the whole world

safer.

Your efforts at home are directly tied to our success. You

are the soldiers at home fighting the war of perception. So

I'm asking you as fellow soldiers to do your duty; stop the

attempts of the enemy wherever you are. You are a mighty

force for good, because truth is on your side.

Together we will win this fight and ensure a better world

for the future.

God Bless and Semper Fidelis,

1st Lt. Robert L. Nofsinger USMC.

Mr. Speaker, 2 weeks ago the ``CBS Evening News with Dan Rather'' broadcast a story about alleged Bush administration efforts to revive the draft. This story was based on a phony anonymous e-mail that claimed a new draft was imminent, and it featured a mother who said she was fearful her children would be drafted, but CBS did not reveal she is a leader in a group that opposes the draft.

Two days ago the House rejected legislation that would have revived the draft by a vote of 402 to 2. CBS apparently is not aware of the House vote because last night's broadcast made no mention of it.

Mr. Speaker, so after airing a major story about the possibility of a draft, CBS failed to report an overwhelming vote of the Congress not to resume the draft and, unfortunately, made no efforts to provide the American people with the facts.

Mr. Speaker, this week's media bias award again goes to the ``CBS Evening News.''

Mr. Chairman, I thank the chairman of the Committee on the Judiciary, the gentleman from Wisconsin (Mr. Sensenbrenner), for yielding me this time.

Mr. Chairman, I strongly support H.R. 10. This legislation includes important immigration provisions that are vital to improving homeland security. The expansion of expedited removal is particularly important to me because it is a provision I originally authored in the Illegal Immigration Reform and Immigrant Responsibilities Act of 1996.

Back in the mid 1990s, thousands of aliens arrived at our airports without valid documents and then made fraudulent asylum claims. They knew they would be released into the community pending their asylum hearing, and few were ever heard from again. We created expedited removal to allow us to immediately return an alien to their country of origin if they showed up in the U.S. without proper documentation. The result is that we no longer have a serious problem of aliens arriving with false documents at airports.

The situation is much different on our land borders. Every day thousands of aliens enter the country illegally, and because we do not have adequate detention space, they are released pending a hearing. A high percentage of these aliens, and this should not surprise anybody, are not from Mexico, they are from every other country you can imagine.

The Department of Homeland Security recently reported that aliens have been apprehended on our borders from such countries as Iran, Saudi Arabia, and Syria. The 1996 Act created authority for the administration to use expedited removal for any alien in the country illegally, but until recently, they have not made use of that authority. The 9/11 Commissioners expressly pointed out how dangerous it is not to have expedited removal at our land borders. Potential terrorists will attempt to cross our land borders, and we should help the administration stop these terrorists from entering the United States. Mr. Chairman, I am pleased that section 3006 of this legislation would expand expedited removal to our land borders.

Mr. Speaker, first of all, I thank the gentleman from Wisconsin (Mr. Sensenbrenner), the chairman of the Committee on the Judiciary, for yielding me time.

Mr. Speaker, I support the manager's amendment to H.R. 4518, the Satellite Home Viewer Extension and Reauthorization Act of 2004 which I introduced.

I, too, would like to acknowledge the contributions and support of the gentleman from Texas (Chairman Barton) and our colleagues on the Committee on Energy and Commerce.

Without the hard work of the gentleman from Michigan (Mr. Upton), sitting to my right, the gentleman from Michigan (Mr. Dingell) and the gentleman from Massachusetts (Mr. Markey), a bill this complex would not have been able to move under suspension.

Also, I want to especially thank the gentleman from Wisconsin (Chairman Sensenbrenner) for his leadership, as well as recognize the personal effort and contributions of both the gentleman from Michigan (Mr. Conyers) and the gentleman from California (Mr. Berman).

This bill will reauthorize the Copyrights Act's distant-signal license, which benefits the satellite industry. Because of this bill, Americans will continue to be able to receive television programming over satellite.

This legislation strikes a balance between the interests of intellectual property owners and the interests of the satellite providers who distribute copyrighted programming.

With time running out this session, it is now critically important that H.R. 4518 be enacted without delay.

The bill makes important changes to both the Copyright Act and the Communications Act to ensure that consumers will have greater choices in programming; that satellite providers have greater freedom to deliver the content consumers desire; that free over-the-air local broadcasters have the opportunity to serve needs that are specific to their communities; and that copyright owners receive the first adjustment to their compensation in 5 years.

In addition, the bill requires the Copyright Office to complete a study and provide recommendations on whether Congress should take further steps to create more parity with the cable compulsory license.

Mr. Speaker, I would also like to recognize the hard work and countless hours that were dedicated by the Copyright Office's Bill Roberts, as well as by David Whitney of my staff, Sampak Garg of the gentleman from Michigan's (Mr. Conyers) staff, and Alec French from the gentleman from California's (Mr. Berman) staff.

Mr. Speaker, H.R. 4518 is a carefully crafted bill that promotes the interests of consumers, satellite providers, broadcasters and copyright owners. It is a fair and balanced bill that deserves the support of this House.

Mr. Speaker, I would like to insert a copy of the September 23 letter by DirecTV, EchoStar, the Motion Picture Association, Major League Baseball into the Record, as well as an October 5 letter by Eddie Fritts of the National Association of Broadcasters that endorses H.R. 4518 at this point.

National Association of

Broadcasters,

Washington, DC, October 5, 2004.

Dear Representative: I understand that this week the House

of Representatives will consider H.R. 4518, the Satellite

Home Viewer Extension and Reauthorization Act. On behalf of

your local television stations, I am writing to urge you to

support this critical legislation, which will help preserve

localism in television and protect the interests of the

American viewer.

The legislation enjoys widespread, bipartisan support. The

bill is the result of extensive compromise and negotiation

between Members of the two Committees of jurisdiction, the

Judiciary Committee and the Energy and Commerce Committee and

is carefully crafted to address a range of satellite

television issues in a pro-consumer fashion. For instance:

The bill would create incentives for satellite subscribers

to gradually shift to selecting their local television

stations in their programming packages.

It would phase-out a discriminatory ``2-dish'' practice

which relegates some local television stations to a second

dish, where they are all but invisible to satellite

subscribers.

The bill would give satellite providers parity with cable

by allowing them to import

``significantly viewed'' out-of-market stations from

adjoining markets.

The legislation balances this new privilege with key

safeguards ensuring such a practice is not abused to the

detriment of local television and consumers.

The bill provides a long needed update to copyright rates,

increasing compensation for copyright holders.

Some have argued the legislation should be modified to

include a ``Digital White Areas'' provision, which would

permit satellite companies to import national, distant,

digital network digital networks from Los Angeles or New York

into local television markets, supplanting local television

stations. However, the vast majority of industry

stakeholders, including local broadcast stations, the

television networks, cable operators, and DirecTV have

rejected this approach and are instead working to see local

high-definition digital television available on cable and

satellite systems. We urge you to reject the Digital White

Areas proposal as well.

Ultimately, as the product of an open process of hearings

and mark-ups in both Committees of jurisdiction, H.R. 4518

would reauthorize the Satellite Home Viewer Improvement Act

in a manner consistent with broadcast television localism. I

strongly urge you to pass H.R. 4518 as written. The measure

will take import strides in protecting the interests of

consumers and furthering localism in television.

Sincerely,

Eddie Fritts.

Mr. Speaker, I thank the gentleman from Virginia (Chairman Goodlatte) for his nice comments, and I am happy to join him in cosponsoring this legislation, but I especially want to express my appreciation to him for being the author and introducing this legislation.

Computer spyware is a growing problem that threatens the future of commerce over the Internet. A recent report found that more than 3 million scans for spyware have been performed just this year alone. These scans revealed approximately 83 million instances of spyware. That is certainly disturbing.

Spyware can be a confusing problem for consumers. Many do not know they have it, or if they do, they do not know how to get rid of it. A Yahoo! Internet search of the term ``spyware'' yields over 8 million results. It is no wonder that the problem is only getting worse.

Mr. Speaker, H.R. 4661 addresses spyware through the regulation of bad behavior rather than the regulation of technology. It provides strong penalties for those who engage in the illicit activities of spyware and phishing.

Rather than add to an already confusing regulatory structure, the bill takes a very narrow approach. H.R. 4661 sets strong penalties for anyone who intentionally uses software to break into a computer in order to alter security settings or obtain personal information. It further authorizes money for the Department of Justice to prosecute spyware and phishing crimes.

Mr. Speaker, I again urge my colleagues to put an end to spyware and support this bill, and again I want to thank the gentleman from Virginia (Chairman Goodlatte) for introducing this piece of legislation.

Mr. Chairman, the Chairman did a good job of summarizing S. 878 so I will not repeat his description of the bill.

I would emphasize that during my Subcommittee's oversight hearing on judgeship needs last year we received testimony from the Judicial Conference and others that supported the requests that are a part of this package.

The need to create new circuit and district judgeships is real and speaks to our obligation to assist a coequal branch of government in discharging its duties on behalf of the American people.

I urge Members to support the bill and the Sensenbrenner amendment that will cure a scoring problem with consideration of S. 878.

Mr. Chairman, I support this amendment.

The Ninth Circuit has become so large that unless something is done, it risks becoming irrelevant.

In the past 2 years, the Courts, Internet and Intellectual Property Subcommittee has held two hearings on this issue.

It is clear to me that this bill contains much-needed reforms to the court system.

As has been pointed out, the Ninth Circuit is the largest in the country. It represents 56 million people and has 48 judges--twice the number of judges in the next largest circuit.

It has gotten so big that because its size prohibits participation by the entire circuit, as few as six judges often determine case law for the entire circuit.

This leads to inconsistent decisions and uncertainty for litigants.

The Ninth Circuit leads all circuits in total appeals filed and pending.

The increase in its workload over one and 5-year periods leads all circuits.

Worst of all, it continues to rank as one of the slowest circuits in disposing of cases.

Mr. Chairman, bigger court systems do not mean better justice, but slower justice.

And as we know, ``justice delayed is justice denied.''

Unless this problem is addressed, the Ninth Circuit will continue to grow in size but diminish in effectiveness.

Mr. Simpson's amendment takes a common sense approach and will make the Ninth Circuit more efficient.

This amendment creates a new Ninth Circuit, as well as a new Twelfth and Thirteenth.

In addition, it authorizes the President to appoint five new judges to permanent Ninth Circuit seats and two judges to fill temporary seats.

The Ninth Circuit has grown too big to take care of the people it serves. I urge my colleagues to support this amendment and help us improve the justice system in this country.

Americans for the most part have retained faith in our judiciary because they believe it applies the rule of law, from traffic court to the Supreme Court, when adjudicating legal disputes.

I hope we are able to return to the Ninth Circuit an ability to discharge its civic functions on behalf of the American people.

Mr. Speaker, I wish to offer some additional information and guidance on several sections of H.R. 4077.

Section 12 of H.R. 4077 is called the ``Family Movie Act of 2004.'' The Committee has made changes to the Committee reported language to better enable the provision to achieve its purpose: to empower people to use technology to skip and mute material that they find objectionable in movies, without impacting established doctrines of copyright or trademark law or those whose business model depends upon advertising. This amendment to the law should be narrowly construed to affect its intended purpose only. The sponsors of the legislation have been careful to tailor narrowly the legislation to clearly allow specific, consumer-directed activity and not to open or decide collateral issues or to affect any other potential or actual disputes in the law.

The substitute amendment we offer today makes clear that, under certain conditions, ``making imperceptible'' of limited portions of audio or video content of a motion picture--that is, skipping and muting limited portions of movies without adding any content--as well as the creation or provision of a computer program or other technology that enables such making imperceptible, does not violate existing copyright or trademark laws. That is true whether the movie is on prerecorded media, like a DVD, or is transmitted to the home, as through services like ``video-on-demand.''

The core provision of the Family Movie Act lies in Section 2, which creates a new exemption at section 110(11) of the Copyright Act. This new exemption sets forth a number of conditions to ensure that it achieves its intended effect while remaining carefully circumscribed and avoiding any unintended consequences. The conditions that allow an exemption, which I will discuss in more detail in a moment, consist of the following:

The making imperceptible must be ``by or at the direction of a member of a private household.'' This legislation contemplates that any altered performances of the motion picture would be made either directly by the viewer or at the direction of a viewer where the viewer is exercising substantial choice over the types of content they choose to skip or mute.

The making imperceptible must occur ``during a performance in or transmitted to the household for private home viewing.'' Thus, this provision does not exempt an unauthorized ``public performance'' of an altered version.

The making imperceptible must be ``from an authorized copy of a motion picture.'' Thus, skipping and muting from an unauthorized, or ``bootleg'' copy of a motion picture would not be exempt.

No ``fixed copy'' of the altered version of the motion picture may be created by the computer program or other technology that makes imperceptible portions of the audio or video content of the motion picture. This provision makes clear that services or technologies that make a fixed copy of the altered version are not afforded the benefit of this exemption.

No changes, deletions or additions may be made by the computer program or other technology to commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during, or after the performance of the motion picture. This requirement makes plain that devices or services that provide for automated ``ad-skipping'' do not fall within the scope of this exemption.

The ``making imperceptible'' of content does not include the addition of audio or video content over or in place of other content, such as placing a modified image of a person, a product, or an advertisement in place of another, or adding content of any kind.

The portion of the substitute amendment containing the Family Movie Act reflects a number of clarifying changes from the version of the bill reported by the Judiciary Committee.

The substitute amendment makes clear that the ``making imperceptible'' of limited portions of audio or video content of a motion picture must be done by or at the direction of a member of a private household. While this limitation does not require that the individual member of the private household exercise ultimate decision- making over each and every scene or element of dialog in the motion picture that is to be made imperceptible, it does require that the making imperceptible be made at the direction of that individual in response to the individualized preferences expressed by that individual. The substitute amendment envisions that the test of ``at the direction of an individual'' is satisfied when an individual selects preferences from among options that are offered by the technology.

The Committee has used as an example the model of ClearPlay, which appeared before the Subcommittee during hearings on this legislation. ClearPlay provides filter files that allow a viewer to express his or her preferences in a number of different categories, including language, violence, drug content, sexual content, and several others. The version of the movie that the viewer sees depends upon the preferences expressed by that viewer. It is the Committee's view that the current version of ClearPlay falls under the liability limitation of the Family Movie Act.

This limitation would not allow a program distributor, such as a provider of video-on-demand services, a cable or satellite channel, or a broadcaster, to make imperceptible limited portions of a movie in order to provide an altered version of that movie to all of its customers, which would likely violate a number of the copyright owner's exclusive rights, or to make a determination of scenes to be skipped or dialog to be muted and to offer to its viewers no more of a choice than to view an original or an altered version of that film. Some element of individualized preferences and control must be present such that the viewer exercises substantial choice over the types of content they choose to skip or mute.

It is also important to emphasize that the new section 110(11) exemption is targeted narrowly and specifically at the act of ``making imperceptible'' limited portions of audio or video content of a motion picture during a performance that occurs in, or that is transmitted to, a private household for private home viewing. This section would not exempt from liability an otherwise infringing performance, or a transmission of a performance, during which limited portions of audio or video content of the motion picture are made imperceptible. In other words, where a performance in a household or a transmission of a performance to a household is done lawfully, the making imperceptible limited portions of audio or video content of the motion picture during that performance, consistent with the requirements of this new section, will not result in infringement liability. Similarly, an infringing performance in a household, or an infringing transmission of a performance to a household, are not rendered non-infringing by section 110(11) by virtue of the fact that limited portions of audio or video content of the motion picture being performed are made imperceptible during such performance or transmission in a manner consistent with that section.

The substitute amendment also provides additional guidance, if not an exact definition, of what the term ``making imperceptible'' means. The substitute provides that the term ``making imperceptible'' does not include the addition of audio or video content that is performed or displayed over or in place of existing content in a motion picture. This is intended to make clear in the text of the statute what has been expressed throughout the consideration of this legislation, which is that the Family Movie Act does not allow for the addition of content of any kind, including the making imperceptible of audio or video content by replacing it or by superimposing other content over it. In other words, for purposes of section 110(11), ``making imperceptible'' refers solely to skipping scenes and portions of scenes or muting audio content from the original, commercially available version of the motion picture. No other modifications of the content are addressed or immunized by this legislation.

The Committee is aware that some copy protection technologies rely on matter placed into the audio or video signal. We would point out that the phrase ``limited portions of audio or video content of a motion picture'' means what it would naturally seem to mean (i.e., the actual content of the motion picture) and does not refer to any component of a copy protection scheme or technology. It is not our intention that this provision allow the skipping of technologies or other copy-protection- related matter for the purpose of defeating copy protection. Rather, it is expected that skipping and muting of content in the actual motion picture will be skipped or muted at the direction of the viewer based on that viewer's desire to avoid seeing or hearing the action or sound in the motion picture. Skipping or muting done for the purpose of or having the effect of avoiding copy protection technologies would be an abuse of the safe harbor outlined in this legislation and may violate section 1201.

Violating the Digital Millennium Copyright Act, and particularly its anti-circumvention provisions, is not necessary to enable technology of the kind contemplated under the Family Movie Act. Although the amendment to section 110 provides that it is not an infringement of copyright to engage in the conduct that is the subject of the Family Movie Act, the Act does not provide any exemption from the anti- circumvention provisions of section 1201 of title 17, or from any other provision of chapter 12 of title 17. It would not be a defense to a claim of violation of section 1201 that the circumvention is for the purpose of engaging in the conduct covered by this new exemption in section 110(11), just as it is not a defense under section 1201 that the circumvention is for the purpose of engaging in any other non- infringing conduct.

The Committee is aware of companies currently providing the type of products and services contemplated by this Act and found that the Family Movie Act created no impediment to the technology employed by those companies. Indeed, it is important to underscore the fact that our support for this technology and consumer offering is driven in some measure by our desire for copyright law to be respected and to ensure that this technology be deployed in a way that supports the continued creation and protection of entertainment and information products that rely on copyright protection. It is our firm expectation that those rights and the interests of viewers in their homes can work together in the context we have defined in this bill. Any suggestion that support for the exercise of viewer choice in modifying their viewing experience of copyrighted works requires violation of either the copyright in the work or of the copy protection schemes that provide protection for such work should be rejected as counter to legislative intent or technological necessity.

The substitute amendment offered today also provides for an exclusion to the exemption in cases involving the making imperceptible of commercial advertisements or network or station promotional announcements. The Committee heard concerns during the Committee markup that the bill might be read to somehow exempt from copyright infringement liability devices that allow for skipping of advertisements in the playback of recorded television. This is neither the intent nor the effect of the bill. The phrase ``limited portions of audio or video content of a motion picture'' is intended to apply only to the skipping and muting of scenes or dialog of a motion picture and not to the skipping of advertisements. That intent is made clear in the language of the statute by our amendment today, which provides that the new section 110(11) exemption does not apply to the making imperceptible of commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during or after the performance of the motion picture.

The changes made by the substitute amendment are not to be taken to suggest that the Committee intends to express a view on the merits of, or the unresolved legal questions underlying, recent litigation related to so-called ``ad-skipping'' technologies. The Committee intends simply to make clear that this legislation is narrowly targeted to the use of technologies and services that filter out content in movies that a viewer finds objectionable and that it in no way relates to or affects the legality of so-called ``ad-skipping'' technologies.

Because the committee's and the sponsors' intention has been to fix a narrow and specific copyright issue, we seek to avoid unnecessarily interfering with current business models, especially with respect to advertising, promotional announcements, and the like.

The phrase ``commercial advertisements or . . . network or station promotional announcements'' is intended to cover what would naturally be perceived as commercials by most viewers, including traditional commercials that stand independent of the narrative flow of the content of the actual motion picture itself, or promotional announcements made in similar fashion, such as those commonly used to announce upcoming programming offered by the network or other entertainment provider.

Let me offer a few final points with respect to Section 2. During the consideration of this legislation the Committee became aware of a variety of services that distributed actual copies of altered movies. This type of activity is clearly not covered by the Family Movie Act. There is a basic distinction between a viewer

choosing to alter what is visible or audible when viewing a film, the focus of this legislation, and a separate entity choosing to create and distribute a single, altered version to members of the public. It is the sponsor's intent that only viewer directed changes to the viewing experience be immunized, and not the making or distribution of actual altered copies of the motion picture.

On a related point, the committee took notice of conflicting expert opinions on whether fixation is required to infringe the derivative work right under the Copyright Act, as well as whether evidence of Congressional intent in enacting the 1976 Copyright Act supports the notion that fixation should not be a prerequisite for the preparation of an infringing derivative work. The committee and the sponsors take no view of that disputed point of the law and leave that point to future developments in the courts or Congress. This legislation should not be construed to be predicated on or to take a position on whether fixation is necessary to violate the derivative work right, or whether the conduct that is immunized by this legislation would be infringing in the absence of this legislation.

Section 3 of the Family Movie Act provides for a limited exemption from trademark infringement for those engaged in the conduct described in the new section 110(11) of the Copyright Act. The substitute amendment makes several clarifying changes from the version as reported by the Committee.

In short, this section makes clear that a person engaging in the conduct described in section 110(11)--the ``making imperceptible of portions of audio or video content of a motion picture or the creation or provision of technology to enable such making available--is not subject to trademark infringement liability based on that conduct, provided that person's conduct complies with the requirements of section 110(11). This section provides a similar exemption for a manufacturer, licensee or licensor of technology that enables such making imperceptible, but such manufacturer, licensee or licensor is subject to the additional requirement that it ensure that the technology provides a clear and conspicuous notice at the beginning of each performance that the performance of the motion picture is altered from the performance intended by the director or the copyright holder.

Of course, nothing in this section would immunize someone whose conduct, apart from the narrow conduct described by 110(11), rises to the level of a Lanham Act violation.

For example, someone who provides technology to enable the making imperceptible limited portions of a motion picture consistent with section 110(11) could not be held liable on account of such conduct under the Trademark Act, but if in providing such technology the person also makes an infringing use of a protected mark or engages in other ancillary conduct that is infringing, such conduct would not be subject to the exemption provided here.

Finally, regarding Section 10(G), the Committee intends that the government has the burden to prove beyond a reasonable doubt that the service provider is ineligible for a Section 512 safe harbor from monetary relief for performing the function in question. The Committee also intends that courts refer to the legislative history regarding and case law interpreting Section 512 as a guide to interpreting the substantive standards governing whether the service provider is ineligible for Section 512 protection.

Mr. Speaker, I thank the gentleman from Texas, majority leader, for yielding me this time.

Mr. Speaker, however we feel about the subject of marriage, we can still support the Marriage Protection Amendment. That is because judicial activism in America has reached a crisis.

Judges routinely overrule the will of the people, invent so-called rights and ignore traditional values. Recently, judges have even changed the definition of marriage. Most Americans simply do not want judges to dictate a new kind of marriage that is so different from the one that has served so many so well for so long. They want to protect marriage as we know it.

Eleven States have proposed to alter their constitutions or statutes to protect traditional marriage through ballot initiatives. Five States have already done so, with an average of over 70 percent of the voters wanting to protect marriage.

To prevent judges from overruling these popular initiatives, we must pass the Marriage Protection Amendment. Either we act in Congress or a few judges will redefine marriage and impose their personal views on the country.

The constitutional amendment process is an integral part of our democratic system, requiring approval from two-thirds of each House of Congress and three-quarters of the States by votes of their State legislatures. Passing a constitutional amendment places this debate back where it belongs, and that is with the American people. It is the American people and their representatives who should determine how marriage is defined. That is why we should support the Marriage Protection Amendment.

Finally, Mr. Speaker, I want to say, we have heard two arguments time and time again today by the opposition that they have used to cite to oppose the Marriage Protection Amendment. The first is some variation of ``all people are created equal,'' that somehow this is about equal rights. But, Mr. Speaker, just because all people are created equal does not mean that all kinds of marriages are equal, just like it does not mean that all kinds of flags are equal or all kinds of governments are equal.

The second argument we have heard today over and over again is that somehow this is a political issue being used to win elections. I do not mind that argument, Mr. Speaker, because that concedes that a majority of the American people agree with us that we want to protect marriage as we know it.